Summary of Federal Law Restricting Use of Highway Safety Data in Tort Litigation (2016)

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4have found that “protected” documentation consists of reports, schedules, surveys, lists, or other related data. These documents might be accident reports, notes of site investigations, engineering studies, accident summaries, charts identifying “high haz- ard” locations, or other similar documents. Section 409 has been amended twice in response to court rulings. The amendments were intended to guide courts as to the appropriate scope of § 409.10 The extensive legislative history of the law is examined in further detail in Section II of this digest. Section 409 has been interpreted by multiple courts, generating a vast body of federal and state caselaw. The United States Supreme Court issued a landmark decision in 2003—Pierce County, Washington v. Guillen.11 In Pierce County, the Guillens requested that the County provide them with copies of accident reports and other documents that showed the acci- dent history of the intersection where the crash that spurred their lawsuit occurred. The request was denied by the County on the basis that the reports were compiled or collected for federal safety purposes and were therefore protected by federal law. An appeal to the U.S. Supreme Court followed multiple state court decisions, and the Court found that as long as the accident reports and other data were obtained for the purposes outlined in the law, they were pro- tected and not to be disseminated for litigation pur- poses. The Guillen case is discussed frequently in the cases that deal with § 409 and in much more detail later in this digest. Although the Guillen Court found that the safety data in question were pro- tected by federal law, cases taken up after that date continue to explore and interpret the law, resulting in a variety of state and federal decisions interpret- ing § 409 and the accompanying federal rules. The purpose of this research digest is to provide a comprehensive analysis of § 409, including legisla- tive history and court rulings. This publication will be of interest to legal practitioners, members of the media, and state and local transportation agencies. This digest is organized as follows: II. Legislative and Substantive History of 23 U.S.C. § 409. This section includes a discussion of the ori- gin of the law and its legislative history. III. Elements of Existing Caselaw. This section includes an examination of the groundbreaking Pierce County decision by the U.S. Supreme Court and reviews the categories of documents that are typically protected by the courts, as well as the criteria used by the courts to determine whether the documents should truly be protected. This section includes a discussion of state public records laws and requests, and their inevitable interaction with § 409. IV. Survey Responses. To obtain information about how and whether states and local agencies are using § 409 to protect safety documentation, a survey was sent to each of the states asking for details about their experiences in the court system and public re- cords requests. Survey findings are summarized and analyzed in this section. V. Tips for Practitioners. This section includes a sample foundation for an evidentiary hearing on whether safety documents are entitled to federal protection, sample objections to interrogatories, and model pleadings with affidavits used in sup- port of the pleadings. VI. Conclusion. VII. Appendix. II. LEGISLATIVE AND SUBSTANTIVE HISTORY OF 23 U.S.C. § 409 The Hazard Elimination Program codified as 23 U.S.C. § 152 in 1973 provided state and local govern- ments with funding to improve their most dangerous sections of roads. To receive federal funding, recipi- ents were required to evaluate their roads, identify hazardous locations, assign priorities for the improve- ment of those locations, and then implement the improvements. Facilitating the program was a diffi- cult task for the U.S. Department of Transportation. States refused to comply with the information- gathering requirements and “expressed strong objec- tion” to providing information, which they believed would expose them to liability.12 The Secretary of Transportation noted in 1986 that in many states, accident-location tracking did not universally cover all of the state highways and that the process was not being uniformly applied to all public roads.13 The following excerpt from a 1995 Transportation Research Board National Cooperative Highway Research Program digest14 further explains the con- cerns of state agencies: In the early 1960’s the federal government concluded that a significant reduction in fatalities and injuries could be 10 See Pierce County, Washington, v. Guillen, 537 U.S. 129, 134, 123 S. Ct. 720, 725, 154 L. Ed. 2d 610, 619–620 (2003). 11 537 U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003). 12 United StateS department of tranSportation and development, Secretary’S Second annUal report on HigHway Safety improvement programS (1976). 13 United StateS department of tranSportation and development, Secretary’S annUal report on HigHway Safety improvement programS (1986). 14 orin fincH, freedom of information act, federal data collectionS, and diScloSUre StatUteS applicable to HigHway projectS and tHe diScovery proceSS (National Cooperative Highway Research Program, Legal Research Digest 33, Transportation Research Board, 1995).

5achieved by establishing in each state a systematic and continuing process of identifying, selecting, scheduling, constructing, and evaluating highway safety improvements. In 1964, the federal government urged the states to imple- ment safety improvements intended to reduce the number and severity of accidents through engineering improvements to hazardous highway locations and elements. This volun- tary approach to federal-aid funding of highway safety improvements met with limited success. As a consequence, Congress gave impetus to the safety improvement program by enacting the Highway Safety Act of 1973, which for the first time provided federal-aid highway funds to be used exclusively for safety improvement projects. Part of this act was the Highway Safety Improvement Program (HSIP)…. HSIP has proven successful. The Federal Highway Administration estimates that highway safety improvement projects constructed since 1974 have saved 29,000 lives and have prevented more than 600,000 serious injuries…. HSIP did, however, result in unintended consequences: large judgments in civil actions against public entities for highway accidents…. In short, the documentation gener- ated by the federally mandated HSIP became a veritable wellspring of proofs for the plaintiffs’ bar in pursuit of large judgments against public entities. As a natural conse- quence, the participants in HSIP (public agencies and rail- roads) became reluctant to gather the extensive array of self-critical material the HSIP required. In response to those concerns, 23 U.S.C. § 40915 was enacted in 1987. It read as follows: Notwithstanding any other provision of law, reports, sur- veys, schedules, lists or data compiled for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented using Federal-aid highway funds shall not be admitted into evidence in Federal or State court or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists or data. In its original form, the text of the law did not spe- cifically prohibit discovery of protected safety-related documents. Instead, in addition to excluding the doc- uments from admission into evidence in a trial, it stated “[such documents] shall not be considered for any other purposes.”16 Because some state and fed- eral courts interpreted that language as allowing discovery of the safety data, the statute was amended in 1991 to specifically prohibit discovery of the data.17 In 1995, Congress again amended § 409 in response to the courts’ continued inconsistent appli- cations of § 409. In the view of Congress, the courts had misinterpreted the terms “data compiled” to apply only to raw data and were failing to look at the purpose of the compilation of the data.18 Cases such as Wiedeman v. Dixie Elec. Membership Corp.,19 Ex Parte Alabama Highway Department,20 and Indiana Department of Transportation v. Overton21 were cited as examples of the courts’ misinterpretation of the scope of § 409. The congressional comment to the 1995 amendment reads as follows: It is intended that raw data compiled prior to being made part of any formal or bound report shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a loca- tion mentioned or addressed in such data.22 In its present form, § 409 provides as follows: Notwithstanding any other provisions of law, reports, sur- veys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous road- way conditions, or railway–highway crossings, pursuant to 23 U.S.C. §§ 130, 144, or 148, of this title or for developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds, shall not be subject to discovery or admitted into evi- dence in a Federal or State court proceeding or considered for such other purposes in any action for damages arising from any occurrence at a location mentioned in such reports, surveys, schedules, lists, or data.23 Section 409 is written in the disjunctive form, so that if either of the tests presented in the statute are met, the safety data collected by the agency are pro- tected. Therefore, if the information was compiled or collected either (1) for the safety enhancement pur- poses identified in the law, or (2) for the development of any highway safety construction improvement project that could be implemented utilizing federal safety funds, then the information is protected under § 409. The first prong of the law is known as the “Highway Safety Improvement Test” or the HSIP test because it relates to the Highway Safety Improvement Program found in 23 U.S.C. § 148. 23 C.F.R. Chapter 1, Subchapter J, Part 924 sets forth the requirements of the state HSIP programs. 15 Pub. L. No. 100-17, 101 Stat. 170 (1987). 16 See Act of Apr. 2, 1987, Pub. L. No. 100-17, § 132, 101, Stat. 170. 17 See Act of Dec. 18, 1991, Pub. L. No. 104-59, § 323, 109 Stat. 591. As referenced in the text of the law, § 130 relates to railroad–highway crossings, § 144 relates to bridge programs, and § 152 relates to the Hazard Elimination Program. 18 National Highway System Designation Act of 1995, Pub. L. No. 104-246, § 328. 19 627 So. 2d 170 (La. 1993). 20 572 So. 2d 389 (Ala. 1990). 21 555 N.E.2d 570 (Ind. App. 1990). 22 H.R. rep. no. 104-246, § 328, at 59 (1995). 23 In 2005, 23 U.S.C. 152 was amended to 23 U.S.C. 148.